Dancing around the First and Fourth Amendments

Whether you think spying is OK or not depends on your relationship to the information being collected.

If you’re on the gathering end, the invasion of someone else’s privacy doesn’t seem like a big deal. But if you’re the one whose private life is being pried into, this kind of surveillance seems like a very big deal indeed.

This dynamic is at work with the unfolding story about National Security Agency programs that vacuum up the telephone and Internet data of millions of people.

To President Barack Obama, such wholesale spying is a necessary evil. “You can’t have 100 percent security and also then have 100 percent privacy,” he said. Senators Saxby Chambliss, Dianne Feinstein, and Lindsey Graham were among many in Congress who came forward to defend the programs.

Maybe they spoke too soon. Hundreds of thousands of Americans are responding in anger and demanding an end to Washington’s widespread surveillance.

This is why protections like the First and Fourth Amendments were enshrined in our Constitution in the first place — to shield people from such abuses of power.

But Americans aren’t being protected right now — because the people signing off on the laws are on the receiving side of the information divide. Many of them have lost touch with the privacy needs of the people they’re sworn to serve. To those in power, the intrusion into our lives is a tiny price to pay for a full-field view of the communications of all Americans.

And the range of data being mined is pretty staggering. According to reports in the Guardian and The Washington Post, the U.S. government is extracting audio, video, photographs, emails, documents, and phone-connection “metadata” that allow authorities to track any person’s movements and contacts over time.

This information includes data about people both abroad and at home who haven’t committed any crimes and have no connections with terrorist groups.

The Obama administration’s supposed authority to spy on all of us stems from its loose interpretation of the controversial USA PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA).

Section 215 of the PATRIOT Act lets the government obtain a secret court order to collect “tangible things” that could be relevant to an investigation from businesses that hold user records. This vague wording has freed up intelligence officers to go after nearly any piece of information from anyone, including our Internet-search data, website-browsing patterns, telephone-contact lists, and even Facebook “likes.”

Section 215 does an official dance around the Fourth Amendment — which protects Americans from the warrantless search and seizure of property — by dispensing with the government’s burden of establishing probable cause before obtaining a search warrant. And FISA, which was reauthorized in 2012 under the FISA Amendments Act, allows the government to monitor the contents of foreign communications traffic — without showing that any particular individual is actually suspected of criminal conduct.

The resulting dragnet also threatens our First Amendment rights. People will be less likely to express themselves on popular services offered by Facebook, Google, and Yahoo if they know these companies are cooperating with government-surveillance schemes.

A coalition of privacy, Internet freedom, and free speech advocates has launched a nationwide campaign to stop the spying and clarify the laws that are supposed to keep our private lives private. The coalition has also called on Congress to launch a special investigation that would reveal the full extent of the NSA’s spying program.

While keeping Americans safe from terrorism is a noble objective, it can be accomplished without stifling free speech, invading everyone’s privacy, and seizing our data. We shouldn’t have to choose between security and our constitutional rights.

Timothy Karr is the senior director of strategy for Free Press.

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